The Plenum of the First Chamber of the Supreme Court handed has issued sentence, 192/2016, relapsed into Appeal in Cassation no. 793/2014 dated 29.03.2016, which once again sets that the lack of determination of the object and duration, determines the radical nullity of the time-sharing of real estate.
However, when analyzing the consequences of such invalidity, it is stated that, even if the art. 1.7 of the 42/98 Law requires restitution of all the amounts paid, its interpretation cannot be alien to the art. 3 of the Civil Code, and so it has to be evaluated that the plaintiffs appellants enjoyed during 11 years of the accommodations that the contract offered them, even reaching to sing a new contract, which is why “the reimbursement of the amounts paid does not have to be total but proportional to the time remaining of the contract validity, considering the maximum legal duration of 50 years”.
The plaintiffs and current appellants now in presence of the Supreme Court, two British citizens, brought a lawsuit against the nullity of two contract called “partnership due to purchase of club membership”, signed in 1998 and 1999, under which acquired a right to make of an apartment at the Monte Alfi Club in the season qualified as “Super Red”. Alternatively, they asked for the resolution of these contracts, in both cases, with refund of the amounts paid plus interest.
They claimed in support of their aspirations, in essence, that the contracts did not satisfied the legal requirements (94/47 Directive and 42/1998 Law) regarding the determination of the object and duration, in particular because neither the apartment, the week nor the period of enjoyment are specifically identified, improperly using the word “property” for the product presentation.
The First Chamber estimates regarding the determination of the object by recalling the legal doctrine fixed in the judgments of the Supreme Court, 775/2015 from the 15th January and 460/2015 from September the 8th, according to which “In the legal system, established by the 42/1998 Law the 15th of December, according to which the timeshare rights of real estate for tourist use, the lack of determination in the contract of accommodation that constitutes its object, determines the nullity of that contract, as provided by art. 1.7 regarding to the 9.1.3rd of the mentioned Law”.
This doctrine applies to the case prosecuted since, dispensing with the legal system (art. 1.1 and 9.1.3rd), the contract was limited to indicate that a right of association to a club for the use of an apartment was bought, but without the necessary reference to a specific accommodation, with details of their registry information and of the turn that was object of the contract.
Similar, with regard to the lack of determination of the duration, it is been reiterated the jurisprudence contained in the sentence of the Supreme Court, 774/2014 15th of January, about the configuration of a contract for an indefinite duration, while the law requires for it to be configured for a period of time from 3 to 50 years, that violates the provisions of Law 42/1998 and leads to its nullity based on the aforementioned art. 1.7.